2007 Issue 1 - New York City Bar Association

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I N T E R N A T I O N A L S E C U R I T Y A F F A I R S Tribunal for Rwanda. 83 Both tribunals were created by the Security Council acting under its Chapter VII authority 84 to prosecute persons responsible for serious violations of international humanitarian law in the two territories. The Security Council could create a similar tribunal to address serious terrorist acts. 85 Unlike the ICC, an ad hoc tribunal would have the ability to prosecute crimes that took place prior to July 1, 2002, the date that the jurisdiction of the ICC took effect. Also, it would likely have more political appeal to the United States than the ICC because such a court would have a limited mandate (tied to a certain act or series of acts) and would be overseen by the Security Council, a body in which the U.S. wields veto power. Such a court would therefore not risk the prosecution of US military personnel or government officials. Some international law and human rights advocates have supported the use of international tribunals for the prosecution of suspected terrorists apprehended by the United States during the invasion of Afghanistan who are being held in Guantanamo Bay. 86 However, the use of international courts has been rejected by the Bush administration, which instead proceeded with trials in domestic courts and military commissions established by President Bush after 9/11 to try suspected terrorists. 87 The post-9/11 policies of detaining and trying terrorists have been substantially eroded through challenges in the U.S. courts. The detention of suspected terrorists held in U.S. custody, whether or not for trial by military tribunals, was limited by a pair of decisions handed down by the Supreme Court in June 2004. The Court held that detainees could invoke the writ of habeas corpus to challenge their detentions, meaning that 83. Statute for the International Tribunal for the Former Yugoslavia, S. C. Res. 827, U.N. SCOR, 48th Sess. 3217th mtg., U.N. Doc. 5/Res/827 (1993); Statute for the International Tribunal for Rwanda, S.C. Res. 955, U.N. SCOR, 49th Sess., 3453d mtg., U.N. Doc. S/Res/ 955 (1994). 84. Chapter VII of the UN Charter confers on the Security Council the right to determine the existence of any threat to peace, breach of peace, or act of aggression and decide what measures shall be taken to maintain or restore international peace and security. 85. See Anne Marie Slaughter, Use courts, not combat, to get the bad guys, INT’L HERALD TRIB., Nov. 20, 2003; Goldstone & Simpson, supra note 70 at 20-21. 86. See, e.g., Anton L. Janik, Jr., Prosecuting Al Qaeda: America’s Human Rights Policy Interests Are Best Served By Trying Terrorists Under International Tribunals, DENV. J. INT’L L. & POL’Y 498, 521-31 (2002). 87. See e.g. U.S. v. Massaoui, No. 01-455-A, (E.D.Va). (federal criminal trial of suspected terrorist); see also Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, 66 Fed. Reg., (Dep’t of Defense, November 13, 2001). T H E R E C O R D 44
P R E V E N T I O N A N D P R O S E C U T I O N O F T E R R O R I S T A C T S their detentions are open to review in U.S. courts. 88 The Court stopped short of declaring a right of all detainees to a full criminal trial, instead holding that they are entitled to “a meaningful opportunity to contest the factual basis for [their] detention before a neutral decisionmaker,” in accordance with due process of law. 89 Subsequently, the use of the military commissions established by the Bush Administration to try suspected terrorists was rejected by the Supreme Court in Hamdan v. Rumsfeld 90 This case concerned a Guantanamo detainee, Salim Ahmed Hamdan, a Yemeni who was allegedly Osama bin Laden’s driver in Afghanistan. The Supreme Court ruled that the tribunals did not meet the requirements of the Geneva Conventions and the U.S. Uniform Code of Military Justice for failing to confer certain protections to the accused, including the right to be present, equivalent to those provided by courts martial for U.S. military personnel. 91 [After this report was written and in response to the Hamdan decision, In October 2006, Congress passed the Military Commission Act, 92 which was designed to meet the Supreme Court’s concerns and authorize the use of military commissions to try suspected terrorists, and for other purposes. The law is being challenged in the U.S. courts.] The decision to use military tribunals had been harshly criticized by human rights activists and many international legal experts. The president of the American Society of International Law at the time of the announcement, Anne-Marie Slaughter, defended the use of international tribunals for these detainees: “The difference between military commissions and an international tribunal is the sanction and legitimacy of the global community. An international tribunal would demonstrate the depth of international solidarity against terrorism.” 93 On the other hand, Ruth Wedgwood, international law professor and advisor to the Department of Defense on military tribunals, observed that preference for military tribunals over international ad hoc tribunals is partly because the ad hoc 88. Rasol v. Bush, 124 S.Ct. 2686 (2004). 89. Hamdi v. Rumsfeld, 124 S. Ct. 2633 (2004). 90. Hamdan v. Rumsfeld, 165 L.Ed.2d 723 (2006). 91. Id. Recent legislation stripped the judiciary of jurisdiction to hear cases regarding Guantanamo detainees except for specific limited appellate jurisdiction and jurisdiction, but the Hamdan case referenced above held that such legislation did not apply to cases pending at enactment. See Detainee Treatment Act of 2005, as included in the Department of Defense Appropriations Act, 2006, Public Law No: 109-148 (2005). 92. Public Law. No. 109-366 (2006). 93. Anne Marie Slaughter, Al Qaeda Should Be Tried Before the World, N.Y. Times, Nov. 17, 2001. 2 0 0 7 V O L. 6 2 , N O. 1 45
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2007 Issue 1 - New York City Bar Association

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